DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
County xxx,
– Respondent –
The 34th Chamber of the Hildesheim Social Court decided on February 18, 2015, through its presiding judge, Director of the Social Court xxx:
The respondent is ordered to grant the applicant, provisionally and subject to the right of recovery, basic income support for the elderly and those with reduced earning capacity, from January 24, 2015 until a legally binding decision is reached on the objection of May 2, 2014 against the decision of April 22, 2014, but no later than June 30, 2015, taking into account the standard rate level 1.
The respondent must reimburse the applicant's extrajudicial costs.
REASONS
I.
The applicant seeks, by way of preliminary legal protection, an order compelling the respondent to grant her higher benefits in accordance with Chapter 4 of the Social Code, Book Twelve – Social Assistance (SGB XII).
The applicant, born in 19xx, has suffered from a physical and intellectual disability since birth. The social welfare office has assigned her a disability rating of 100%, along with the disability markers "G" and "H". She rents rooms in her parents' house, who also act as her legal guardians. She is employed at the "Göttinger Werkstätten," a facility for people with disabilities, where she earns a small monthly income.
The respondent granted the applicant basic income support benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), effective May 1, 2011, as confirmed by the decision of April 22, 2014, amended by the decisions of September 2, 2014/December 9, 2014, for the benefit period from July 1, 2014 to June 30, 2015. From January 2015, the respondent calculated the monthly needs as follows: standard benefit of €320.00, additional needs allowance due to the disability marker "G" of €54.40, accommodation/heating costs of €228.00, and deducted €32.00 from this amount due to participation in lunch at the facility. The calculated need of €570.40 was compared to an adjusted monthly income of €42.89, and the payment amount was set at €527.31.
The applicant filed an objection on May 2, 2015, against the decision of April 22, 2014, on which – as far as is known – no decision has yet been issued. In this regard, the applicant filed an action for failure to act on August 11, 2014, which is still pending before the adjudicating chamber – S 34 SO 176/14.
On January 24, 2015, the applicant applied for a preliminary injunction to compel the respondent to grant her basic income support benefits at standard benefit level 1 instead of standard benefit level 3. She cites the case law of the Federal Social Court, which the respondent is allegedly failing to implement. According to her submissions, she requests that
the respondent be ordered to grant her basic income support benefits for the elderly and those with reduced earning capacity, taking into account standard benefit level 1, provisionally and subject to repayment, from the date of application until a legally binding decision is reached on her objection of May 2, 2014, against the decision of April 22, 2014, but no later than June 30, 2015.
The respondent requests that
the application be rejected.
In his opinion, the applicant's claim for an injunction had not been substantiated. He disputed that the applicant maintained her own household. Without a directive from the responsible ministry, it was not possible to apply the standard benefit rate of 1 in cases of this kind.
For details of the facts and the legal arguments, reference is made to the court file and the administrative file of the respondent, which were available and formed the basis of the court's decision-making.
II.
The application for preliminary legal protection is successful.
Pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing such an injunction is the existence of a ground justifying the urgency of the decision, as well as the existence of a claim for the injunction under substantive social security law. Both the claim for the injunction and the ground for the injunction must be substantiated pursuant to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO).
Furthermore, preliminary injunction proceedings may not grant what can only be obtained in the main proceedings. An exception to the principle of prohibiting prejudging the main issue is permissible only if, without the issuance of a preliminary injunction, serious and unreasonable disadvantages would arise that cannot be averted in any other way, and which a subsequent decision in the main proceedings would no longer be able to remedy, and where a high probability of success can be predicted for the main proceedings (see Lower Saxony Higher Social Court, decision of September 8, 2004, file number: L 7 AL 103/04 ER).
By these standards, the applicant has demonstrated both grounds for an order and a claim to an order.
The urgency of the court's decision stems from the fact that the parties are disputing the amount of subsistence benefits. It is constitutionally mandated that the applicant be granted basic income support benefits in the amount to which she is entitled to cover her needs, in order to ensure her necessary subsistence. Based on the circumstances of this case, the overwhelming evidence suggests that these are standard benefits at the higher standard benefit level 1, rather than the benefits granted to her at standard benefit level 3. The court therefore assumes that she has a credible claim for an injunction based on substantive law.
The amount of entitlement to basic income support is governed by Section 42 No. 1 of the German Social Code, Book XII (SGB XII). According to this provision, basic income support includes, among other things, the standard rates based on the standard needs levels in the appendix to Section 28 SGB XII; in addition, Section 27a Paragraphs 3 and 4 Sentences 1 and 2 SGB XII apply. Monthly standard rates are to be granted to cover the standard needs (Section 27a Paragraph 3 Sentence 1 SGB XII). According to the appendix to Section 28 SGB XII, since January 1, 2015, an eligible adult who lives alone or as a single parent and maintains their own household receives benefits at standard needs level 1 in the amount of €399.00; this also applies if one or more other adults who are assigned to standard needs level 3 live in this household. Standard benefit level 3, which provides benefits of €320.00 (80% of standard benefit level 1), applies to an eligible adult who neither maintains their own household nor shares a household with a spouse, registered partner, or in a cohabiting relationship similar to marriage or registered partnership. The amount of the additional needs allowance pursuant to Section 42 No. 2 of the German Social Code, Book XII (SGB XII) in conjunction with Section 30 Paragraph 1 No. 1 of the SGB XII – disability marker "G" – which the applicant is also entitled to, is derived from the applicable standard benefit level.
The Federal Social Court (BSG) ruled, among other things, in its judgment of July 23, 2014 – B 8 SO 14/13 R – that in social assistance law, the needs of an adult entitled to benefits for subsistence are, in principle, based on standard benefit level 1, even if they live in a household with another person without being their partner; standard benefit level 3, on the other hand, only applies to cohabitation with others in a household if there is no independent participation or only a very insignificant participation in the management of the household (principle – juris). In this regard, the Federal Social Court (BSG) states (ibid., para. 31 with further references) that
“…standard benefit level 3 applies if, contrary to the statutory presumption set forth in Section 39 Sentence 1, first half-sentence of the German Social Code, Book XII (SGB XII), no household community exists. Whether this is regularly the case in classic subletting arrangements, which are characterized by the (contractually) excluded possibility of participation in household management (as stated in the explanatory memorandum to the law; Bundestag printed matter 17/4095, p. 40), can remain open; because there is no evidence here to support such a scenario. In a cohabitation arrangement that, unlike a mere subletting arrangement, is characterized precisely (also) by increased support services provided by one household member to the other, such a case can only exist if the physically and/or mentally disabled cohabitant has no independent participation in household management or only a completely insignificant one. Only in this case is the household in which the person entitled to benefits lives a "Foreign household." Such a situation will only exist in exceptional cases; for the participation in household management desired and encouraged by the persons living together, within the scope of their respective physical and/or mental abilities, and a correspondingly coordinated approach to household management, is sufficient. The Senate has detailed this for the situation of parents living with their adult children with disabilities (Judgment of July 23, 2014 – B 8 SO 31/12 R); corresponding concepts of an initially equal cohabitation resulting in a shared household within the meaning of Section 39 Sentence 1, first half-sentence of the German Social Code, Book XII (SGB XII), are also transferable to shared living arrangements characterized by (mutual) support. The Social Court will only have to examine whether an exceptionally different situation exists if the defendant presents qualified arguments regarding this new legal aspect. The burden of proof in this respect lies with the defendant, who is invoking the existence of a case deviating from the statutory typicality. …“
The court follows the established case law of the highest court. This is not a case that deviates from the statutory typicality. The respondent has not conducted any investigations in this regard. There is no indication that the applicant is incapable of participating in household management within the scope of her physical and/or mental abilities.
The court deems it necessary, given this clear legal situation, to allow an exception to the prohibition against prejudging the merits of the case. As explained, the applicant's claim is highly likely to be valid under substantive law and justifies the prediction that she will ultimately be able to enforce her claim through a potential action for annulment and performance.
The public interests to be protected by the respondent are taken into account by making the obligation to provide provisional services subject to the right of recovery and applying at most for the grant period ending on June 30, 2015.
The decision on costs is based on the corresponding application of Section 193 Paragraph 1 of the Social Court Act (SGG). According to this provision, the applicant can demand reimbursement of her extrajudicial costs from the respondent because she was able to achieve her objective.
The appeal against this decision in the preliminary injunction proceedings is inadmissible pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) because an appeal on the merits would not be admissible. Pursuant to Section 144 Paragraph 1 No. 1 of the SGG, an appeal on the merits would also be inadmissible because the value of the subject matter of the appeal does not exceed €750.00. The difference between standard level 1 and standard level 3 amounts to €79.00 per month. For the period of the preliminary arrangement until June 30, 2015, the value of the subject matter of the appeal is not reached.
